UK: Unprecedented New Enforcement Measures Introduced in the United Kingdom to Tackle Online Copyright Infringements and Unauthorised File-Sharing

A new copyright enforcement scheme has been introduced in the UK
earlier this month (April 2010). The scheme, part of the Digital
Economy Act 2010, has passed through Parliament in an expedited
legislation process ahead of general elections due in the UK in
early May 2010. The new law - which amends the Communications Act
2003 - introduces a comprehensive enforcement scheme aimed
primarily at discouraging unlawful file-sharing by members of the
public.

The new enforcement measures focus primarily on internet account
holders ("subscribers") whose accounts
are being used for copyright infringement activities such as
file-sharing and other forms of unauthorised online distribution of
copyright materials, including offering such materials for
downloading, viewing or copying. Subject to implementation through
secondary legislation, the new legislation will also help the
copyright industries in their fight against online infringements
and will add pressure on web services that host user-generated
content to improve the effectiveness of their infringement
prevention systems.

The legislation provides for an array of remedies, ranging from
the issuing of warning letters by internet service providers
("ISPs") to their subscribers, exposing
repeated offenders to civil enforcement action by copyright owners,
imposing of technical sanctions on repeated offenders in relation
to their internet access, through to blocking orders to prevent
access generally to websites engaged in copyright
infringements.

Copyright infringement reports and notifications

The first measures the new legislation introduces is a procedure
by which right holders would be able to submit reports to ISPs on
apparent copyright infringement activities by internet users. A
copyright owner would be able to conduct an online investigation to
identify IP addresses used for file-sharing and other similar
activities, where the right holder's copyright materials are
being unlawfully shared or distributed. These lists of IP addresses
suspected for being used for infringements would be given to the
ISP. An ISP receiving an infringements report from a copyright
owner would be required, in turn, within 1 month, to send
infringement notices to the subscribers listed (by their IP
addresses) in the report. The primary purpose of the notifications
is to educate members of the public that file-sharing is unlawful
and to warn the subscribers that if they do not prevent the use of
their internet account for infringing purposes they might face
legal proceedings and their internet access may be limited or
blocked altogether. It is hoped that these notifications would
discourage subscribers from engaging in file-sharing and encourage
them to prevent those who are using their internet account - mainly
their family members - from engaging in such activities.

Disclosure of subscribers' details to facilitate civil
action

At the next level, where infringement notices do not have the
desired effect, ISPs would be required to provide right holders
with lists of cases of repeated infringements. The copyright owner
would be able to require the ISP to provide it with sanitised lists
of subscribers whose accounts continue to be used, repeatedly, for
the unlawful file-sharing of the copyright owner's materials.
The data will be provided to the copyright owner on an anonymous
basis. However, the right holder would be able to seek a court
order for the disclosure of the full details of the suspected
infringers, paving the way for legal action.

The code

The implementation of the these so called 'initial
obligations' is conditional on the adoption of an industry code
and its approval by OFCOM - the UK telecommunications regulator.
The code would set out in greater detail the criteria for issuing
infringement notifications in specific cases and will set the
specific thresholds of repeated offending that would trigger the
requirement on ISPs to provide lists of repeated offenders to
copyright owners. The code will also address various other issues
such as how the costs of the scheme will be shared among ISPs and
copyright owners and, in some cases, subscribers, requirements as
to the provision of information by right holders and ISPs to
establish whether the applicable criteria are met in particular
cases, and provisions concerning rights of appeal. The code would
have to be approved by OFCOM in a statutory instrument and will be
subject to Parliamentary supervision.

As long as an industry code is not approved, OFCOM itself is
required to adopt a code in relation to these enforcement measures,
which would be subject to the same Parliamentary supervisory
powers.

Technical sanctions against repeated offenders

Under the new law, secondary legislation may be introduced by
Government (subject to Parliament approval) requiring ISPs to limit
internet access to subscribers who exceed the prescribed threshold
of copyright infringement notifications defined in the code. ISPs
may be required to impose technical sanctions on such subscribers
which may include: limiting internet connection speed (in order to
prevent uploading), preventing or limiting subscriber' access
to certain online materials, or even suspending subscribers'
internet access.

The secondary legislation cannot be made before the 'initial
obligations' code has been in force for at least 12 months and
a formal OFCOM assessment of the need for such technical measures
is submitted to the Government. Once such secondary legislation is
made, OFCOM will be required to adopt an additional code to
implement and regulate the legislation concerning technical
sanctions. This code - which may be combined with the 'initial
obligations' code - will also be subject to Parliamentary
supervision.

Appeals

Subscribers will be able to appeal to an independent tribunal
against the issuing of copyright infringement notices and the
imposition of technical sanctions. In case of technical sanctions,
the legislation requires two levels of appeal. The grounds of
appeal are to be set out in detail in the code. However, the
legislation provides that an appeal would have to be determined in
favour of a subscriber unless the copyright owner or ISP can prove
that the infringement alleged by the copyright owner was in fact an
infringement of its copyright and that the infringement report
correctly identified the subscriber's IP address. In addition,
an appeal would have to be determined in favour of a subscriber if
he or she can show that the alleged infringing activities were not
done by the subscriber and that the subscriber took reasonable
steps to prevent other persons infringing copyright by means of the
subscriber's internet account.

The latter point addresses one of the criticisms raised against
the new legislation - particularly the power to impose technical
sanctions on subscribers - that widely available hacking methods
can be used to allow access to another person's internet
account to engage in file-sharing or similar activities and that
the legislation might lead to enforcement action being taken
against many innocent internet users who are not engaged in
copyright infringement but whose accounts are used for such
purposes by third parties. The new law provides a good defence to
subscribers who can show that they put in place 'reasonable
security measures' to prevent their account from being misused
in such way. This could mean effectively that internet users would
have to adopt technical security measures to protect their internet
accounts, of risk the consequences. When such measures would be
deemed 'reasonable' is yet to be seen.

Blocking orders

The new legislation further empowers the Government - if it is
convinced that it is necessary to do so in order to prevent
"serious adverse effect on businesses and consumers" - to
make regulations authorising the courts to issue blocking
injunctions in respect of 'locations' on the internet used
for copyright infringement activities. Under a 'blocking
injunction', the court would be able to order ISPs to block
access to users to the internet website in question.

In granting a blocking injunction, the court would have to take
into account, among other things, the evidence as to the steps
taken by the ISP or by the relevant website operator to prevent the
infringement, evidence of steps taken by the copyright owner or
licensee to facilitate lawful access to the material, the
importance of freedom of expression and the likelihood of
disproportionate effect on any person's legitimate interests of
the injunction.

The legislation does not specify who would be able to seek a
blocking injunction from the court, and whether the remedy would be
available to private parties or only to regulators. However, the
legislation does indicate that the consent of the Lord Chancellor
for any such proceedings would be required. Much of the rest of the
detail would be flushed out in the regulations which would be
subject to Parliamentary supervision.

Whereas in other respects the new legislation introduces
enforcement measures against subscribers, this element, if
implemented, will focus on internet websites which are used -
whether by the website operator or by the users of the site - for
infringing activities. If and when such regulations are made, they
will provide further ammunition to the copyright industries in
their fight against websites and internet services engaged in
infringements or which enable infringements, in particular those
hosting users-generated content, and will add to the pressure on
such web services to improve the effectiveness of their
infringement prevention systems.

Constance Jung provided valuable assistance in the
preparation of this article.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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